Amendment ASA4-AB393

LRBs0307/1

MCP:cjs

2023 - 2024 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 4, TO ASSEMBLY BILL 393

February 15, 2024 - Offered by Representatives Madison and Ortiz-Velez.

AB393-ASA4,2,2 An Act to repeal 961.571 (1) (a) 7., 961.571 (1) (a) 11. e. and 961.571 (1) (a) 11. k. and L.; to renumber and amend 115.35 (1); to amend 20.115 (7) (gc), 49.148 (4) (a), 49.79 (5) (a), 59.54 (25) (title), 59.54 (25) (a) (intro.), 66.0107 (1) (bm), 111.35 (2) (e), 114.09 (2) (bm) 1. (intro.), 114.09 (2) (bm) 4., 157.06 (11) (i), 175.35 (2g) (c) 4. a., 289.33 (3) (d), 349.02 (2) (b) 4. and 961.571 (1) (a) 11. (intro.); and to create 16.282, 20.115 (7) (ge), 20.192 (1) (t), 20.255 (2) (r), 20.395 (5) (db), 20.435 (1) (s), 20.437 (3) (r), 20.505 (1) (t), 20.566 (1) (bn), 20.835 (2) (eq), 25.316, 48.47 (20), 66.04185, 73.17, 77.54 (71), 94.56, 94.57, 108.02 (18r), 108.02 (21g), 108.04 (5m), 108.133 (1) (em), 111.32 (9m), 111.32 (11m), subchapter IV of chapter 139 [precedes 139.97], 157.06 (11) (hm), 175.35 (2g) (b) 3., 238.139, 250.22 and subchapter VIII of chapter 961 [precedes 961.70] of the statutes; relating to: legalizing the possession of medical marijuana; regulating the production, processing, and sale of marijuana; expunging or redesignating past convictions for marijuana-related crimes; equity grants; making an appropriation; and providing a penalty.

Analysis by the Legislative Reference Bureau

Under this bill, a qualifying patient of any age may possess marijuana for medical purposes, and a person may produce, process, or sell marijuana if the person has a permit. This bill creates an excise tax for the privilege of producing, processing, distributing, or selling marijuana in this state, and 60 percent of the revenue collected from the tax is deposited into a segregated fund called the “community reinvestment fund.” Under the bill, qualifying patient is not subject to sales or excise taxes on the purchase or use of marijuana. The bill does not affect federal law, which generally prohibits persons from manufacturing, delivering, or possessing marijuana and applies to both intrastate and interstate violations.

Legalizing the possession of medical marijuana

Current law prohibits a person from manufacturing, distributing, or delivering marijuana; possessing marijuana with the intent to manufacture, distribute, or deliver it; possessing or attempting to possess marijuana; using drug paraphernalia; or possessing drug paraphernalia with the intent to produce, distribute, or use a controlled substance. The bill changes state law to allow a qualifying patient to possess marijuana for medical purposes. Under the bill, a qualifying patient is an individual of any age who has been diagnosed by a physician as having or undergoing a debilitating medical condition such as cancer, glaucoma, AIDS, or another specified condition, or is undergoing a debilitating medical treatment.

The bill also eliminates, for qualifying patients, the prohibition on possessing or using drug paraphernalia that relates to marijuana consumption. In addition, qualifying patients may cultivate as many as six marijuana plants for personal use.

Medical marijuana registry

The bill requires DOR to create and maintain a medical marijuana registry program whereby an individual who is a qualifying patient may obtain a registry identification card and purchase marijuana from a retail establishment.

Regulating the production, processing, and sale of marijuana

Under the bill, no person may sell or distribute, or possess with the intent to sell or distribute, marijuana unless the person has a permit from the Department of Revenue.

The bill requires a person to obtain separate permits from DOR to produce, process, distribute, or sell marijuana or to sell marijuana for on-premises consumption (marijuana lounge), and requires marijuana producers and processors to obtain additional permits from the Department of Agriculture, Trade and Consumer Protection. The requirements for obtaining these permits differ based on whether the permit is issued by DOR or DATCP but, in general, a person may not obtain such a permit if he or she is not a state resident, is under the age of 21, or has been convicted of certain crimes or committed certain offenses. In addition, a person may not operate under a DOR or DATCP permit within 500 feet of a school, playground, recreation facility, child care facility, public park, public transit facility, or library, and a person may not operate a marijuana lounge unless the municipality or county in which the marijuana lounge is located has enacted an ordinance authorizing such operation. A person who holds a permit from DOR must also comply with certain operational requirements.

Under the bill, a permit applicant with 20 or more employees may not receive a permit from DATCP or DOR unless the applicant certifies that the applicant has entered into a labor peace agreement with a labor organization. The labor peace agreement prohibits the labor organization and its members from engaging in any economic interference with persons doing business in this state, prohibits the applicant from disrupting the efforts of the labor organization to communicate with and to organize and represent the applicant's employees, and provides the labor organization access to areas in which the employees work to discuss employment rights and the terms and conditions of employment. Current law prohibits the state and any local unit of government from requiring a labor peace agreement as a condition for any regulatory approval. The permit requirements under the bill are not subject to that prohibition.

The bill also requires DATCP and DOR to use a competitive scoring system to determine which applicants are eligible to receive permits. Each department must issue permits to the highest scoring applicants that it determines will best protect the environment; provide stable, family-supporting jobs to local residents; ensure worker and consumer safety; operate secure facilities; and uphold the laws of the jurisdictions in which they operate. Each department may deny a permit to an applicant with a low score.

The bill prohibits a DOR permittee from selling, distributing, or transferring marijuana to a person other than another DOR permittee or a qualifying patient. The bill also prohibits a DOR permittee from selling, distributing, or transferring marijuana to a person under the age of 21 and from allowing such an underage person to be on premises for which a permit is issued. If a permittee violates one of those prohibitions, the permittee may be subject to a civil forfeiture of not more than $500 and the permit may be suspended for up to 90 days.

Previous convictions relating to marijuana

The bill requires the director of state courts to review records of acts that have been decriminalized under the bill. If a record is for a conviction for an act that the bill decriminalizes or for which the bill lessens the penalty, the sentencing court must be notified. If the act was a misdemeanor, the court must dismiss the conviction and expunge the record or, if applicable, redesignate it to a lesser crime. If the act was a felony, the court must determine if it is in the public interest to dismiss the conviction and expunge the record or, if applicable, redesignate it to a lesser crime. The presumption is that such actions are in the public interest unless there is clear and convincing evidence that the actions would create a risk to public safety. If the felony is expunged or redesignated to a misdemeanor or civil forfeiture, the sentencing court must determine if there is good cause to restore the person's right to possess a firearm. Finally, if the record is for an arrest or a charge for an act that the bill decriminalizes or for which the bill lessens the penalty, the director of state courts must expunge such records.

Registration for THC testing labs

The bill requires DATCP to register entities as tetrahydrocannabinols (THC)-testing laboratories. The laboratories must test marijuana for contaminants; research findings on the use of medical marijuana; and provide training on safe and efficient cultivation, harvesting, packaging, labeling, and distribution of marijuana, security and inventory accountability, and research on medical marijuana.

Discrimination based on marijuana use

Under the fair employment law, no employer or other person may engage in any act of employment discrimination against any individual on the basis of the individual's use or nonuse of lawful products off the employer's premises during nonworking hours, subject to certain exceptions, one of which is if the use impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment. The bill specifically defines marijuana, as used by a qualifying patient, as a lawful product for purposes of the fair employment law, such that no person may engage in any act of employment discrimination against a qualifying patient because of the qualifying patient's use of marijuana off the employer's premises during nonworking hours, subject to those exceptions.

Under current law, an individual may be disqualified from receiving unemployment insurance benefits if he or she is terminated because of misconduct or substantial fault. The bill specifically provides that a qualifying patient's use of marijuana off the employer's premises during nonworking hours does not constitute misconduct or substantial fault unless termination for that use is permitted under one of the exceptions under the fair employment law.

Unless federal law requires otherwise, the bill prohibits a hospital, physician, organ procurement organization, or other person from determining the ultimate recipient of an anatomical gift on the sole basis of a positive test for the use of marijuana by a potential recipient that is a qualifying patient.

Drug screening and testing

The bill exempts qualifying patients from testing requirements for THC for certain public assistance programs. Currently, a participant in a community service job or transitional placement under the Wisconsin Works program (W2) or a recipient of the FoodShare program, also known as the food stamp program, who is convicted of possession, use, or distribution of a controlled substance must submit to a test for controlled substances as a condition of continued eligibility. The Department of Health Services is currently required to request a waiver of federal Medicaid law to require drug screening and testing as a condition of eligibility for the childless adult demonstration project in the Medical Assistance program. Current law also requires DHS to promulgate rules to develop and implement a drug screening, testing, and treatment policy for able-bodied adults without dependents in the FoodShare employment and training program. The bill exempts qualifying patients from THC-testing requirements for all of those programs.

Under current law, the Department of Workforce Development must establish a program to test claimants who apply for unemployment insurance benefits for the presence of controlled substances, as defined under federal law. If a claimant tests positive for a controlled substance, the claimant may be denied UI benefits, subject to certain exceptions and limitations. The bill excludes qualifying patients from this testing requirement. As such, under the bill, qualifying patient who tests positive for THC may not be denied UI benefits.

Equity grants and program for law enforcement training

The bill provides for a number of grants to be paid from the revenue generated from the excise tax on marijuana that is deposited into the community reinvestment fund. For example, the bill requires the Department of Administration to provide grants to public, private, and nonprofit entities in this state that promote diversity and advance equity and inclusion, including promoting the inclusion of women and racial and ethnic minorities in the production and sale of marijuana. In addition, the bill directs DHS to award grants to community organizations to implement community health worker care models. The bill also directs DHS to award grants to community organizations and local or tribal health departments to hire health equity strategists and to implement health equity action plans in small geographic areas.

The bill appropriates $125,000 in fiscal year 2023-24 and $250,000 in fiscal year 2024-25 for the Department of Transportation's Drug Evaluation and Classification Program. The program provides training for law enforcement officers and others in the recognition of drug influence and impairment.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB393-ASA4,1 Section 1 . 16.282 of the statutes is created to read:

AB393-ASA4,5,6 16.282 Equity grants. The department shall develop and administer a grants program to provide grants to public, private, and nonprofit entities in this state that promote diversity and advance equity and inclusion, including promoting the inclusion of women and racial and ethnic minorities in the production and sale of marijuana.

AB393-ASA4,2 Section 2 . 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table - See PDF for table - See PDF for table - See PDF for table - See PDF for table

AB393-ASA4,3 Section 3. 20.115 (7) (gc) of the statutes is amended to read:

AB393-ASA4,7,4 20.115 (7) (gc) Industrial hemp and marijuana. All moneys received under s. 94.55 for regulation of activities relating to industrial hemp under s. 94.55 and to marijuana under s. 94.56.

AB393-ASA4,4 Section 4 . 20.115 (7) (ge) of the statutes is created to read:

AB393-ASA4,7,8 20.115 (7) (ge) Marijuana producers and processors. All moneys received under s. 94.56 for regulation of activities relating to marijuana under s. 94.56 and for conducting public awareness campaigns under s. 94.56.

AB393-ASA4,5 Section 5 . 20.192 (1) (t) of the statutes is created to read:

AB393-ASA4,7,12 20.192 (1) (t) Underserved community grants. From the community reinvestment fund, the amounts in the schedule for the purpose of providing underserved community grants under s. 238.139.

AB393-ASA4,6 Section 6 . 20.255 (2) (r) of the statutes is created to read:

AB393-ASA4,7,16 20.255 (2) (r) Sparsity aid; community reinvestment fund supplement. From the community reinvestment fund, the amounts in the schedule for sparsity aid to school districts under s. 115.436.

AB393-ASA4,7 Section 7. 20.395 (5) (db) of the statutes is created to read:

AB393-ASA4,8,4 20.395 (5) (db) Drug evaluation and classification program. From the general fund, the amounts in the schedule for the drug evaluation and classification program.

AB393-ASA4,8 Section 8 . 20.435 (1) (s) of the statutes is created to read:

AB393-ASA4,8,7 20.435 (1) (s) Health equity grants. From the community reinvestment fund, the amounts in the schedule for health equity grants under s. 250.22.